Odd assumptions throughout, though it does revive a favorite subject of mine.
Before its unfortunate editing, the composition of the Second Amendment was structured like the First, namely a set of statements separated by semicolons. Before editing and votes on additions, it read: The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person. Thus Magarian's assumption appears false on its face. The Founders initial intent is transparent - that they lumped together related topics into an amendment. The First includes a slate of rights that cluster around the notion of freedom of conscious and interaction. The Second clustered around armed self-defense, individual and collective. Thus I'll be bold enough to state that the First Amendment actually compliments and reinforces the standard model of the Second, which is opposite of what Magarian writes. Guy Smith Author of Shooting <http://www.amazon.com/gp/product/0983240701/> The Bull and Gun Facts <http://www.gunfacts.info/> _____ From: [email protected] [mailto:[email protected]] On Behalf Of Joseph E. Olson Sent: Tuesday, March 06, 2012 10:43 AM To: List Firearms Reg Cc: postHeller Subject: new anti article <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2009125> "Speaking Truth to Firepower: How the First Amendment Destabilizes the Second" Washington University in St. Louis Legal Studies Research Paper <http://papers.ssrn.com/sol3/PIP_Journal.cfm?pip_jrnl=382963> No. 12-02-05 GREGORY P. MAGARIAN <http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=273283> , Washington University in Saint Louis - School of Law Email: [email protected] When the Supreme Court in District of Columbia v. Heller declared that the Second Amendment protects an individual right to keep and bear arms, it set atop the federal judicial agenda the critical task of elaborating the new right's scope, limits, and content. Following Heller, commentators routinely draw upon the First Amendment's protections for expressive freedom to support their proposals for Second Amendment doctrine. In this article, Professor Magarian advocates a very different role for the First Amendment in explicating the Second, and he contends that our best understanding of First Amendment theory and doctrine severely diminishes the Second Amendment's legal potency. Professor Magarian first criticizes efforts to draw direct analogies between the First and Second Amendments, because the two amendments and their objects of protection diverge along critical descriptive, normative, and functional lines. He then contends that the longstanding debate about whether constitutional speech protections primarily serve collectivist or individualist purposes models a useful approach for interpreting the Second Amendment. Under that approach, the language of the Second Amendment's preamble, which Heller all but erased from the text, compels a collectivist reading of the Second Amendment. The individual right to keep and bear arms, contrary to the Heller Court's fixation on individual self-defense, must serve some collective interest. Many gun rights advocates urge that the Second Amendment serves a collective interest in deterring - and, if necessary, violently deposing - a tyrannical federal government. That theory of Second Amendment insurrectionism marks another point of contact with the First Amendment, because constitutional expressive freedom serves the conceptually similar function of protecting public debate in order to enable dynamic political change. Professor Magarian contends, however, that we should prefer debate to violence as a means of political change and that, in fact, the historical disparity in our legal culture's attention to the First and Second Amendments reflects a longstanding choice of debate over insurrection. Moreover, embracing Second Amendment insurrectionism would endanger our commitment to protecting dissident political speech under the First Amendment. The article concludes that our insights about the First Amendment leave little space for the Second Amendment to develop as a meaningful constraint on government action. **************************************************************************** ************************************ Professor Joseph Olson, J.D., LL.M. o- 651-523-2142 Hamline University School of Law (MS-D2037) f- 651-523-2236 St. Paul, MN 55113-1235 c- 612-865-7956 [email protected] http://law.hamline.edu/constitutional_law/joseph_olson.html
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